Legal Issues Related to Transgender Students July 2021
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Legal Issues Related to Transgender Students Published online in TASB School Law eSource In recent years the legal rights of transgender students have been the topic of federal guidance, litigation, and increased public awareness. This article addresses some of the more common questions that school districts face in this emerging area. 1. Does a student have a right to be recognized as transgender at school? Generally, yes. The extent of the student’s right, and the district’s duty, depends on the specific situation. Under federal law, transgender students have the right to be free from discrimination based on their gender identity and to freely express that gender identity. As such, transgender students should be permitted to wear clothing that aligns with their gender identity. School districts should also use the preferred name and gender of the transgender student unless specifically prohibited by law. Like all students, transgender students must be protected by schools from bullying and harassment by students or employees. While all students need a safe place to learn, transgender and gender-nonconforming students face a heightened risk of bullying, violence, and discrimination.1 Bullying of a student because of the student’s nonconformity with gender norms is a form of harassment based on sex in violation of federal law.2 In some instances, reconsidering whether an activity or event needs to divide students by gender may help to avoid calling attention to a transgender or gender- nonconforming student. In other instances, a district may need to group the student with other students of the same gender identity in order to ensure student safety and minimize disruptions to the educational environment. While each student’s safety and privacy needs will inevitably vary, the positions and potential risks are clear. Consequently, districts should apply a common sense, case-by-case approach to reach the best resolution in each specific situation. 1 See Gay, Lesbian, Straight Education Network, The 2015 School Climate Survey (2016) (finding 57.6 % of LGBTQ students feel unsafe at school and that school-related supports can improve student experiences). 2 See, e.g., Carmichael v. Galbraith, 574 F. App’x 286 (5th Cir. 2014) (holding that parents of middle school male student who committed suicide after allegedly being bullied by male students because of gender-based stereotypes sufficiently stated student-on-student sexual harassment claim under Title IX). © 2021. Texas Association of School Boards, Inc. All rights reserved. TASB Legal Services Page 2 2. What are common terms for understanding and discussing transgender issues? The following terms and their definitions have been used by the U. S. Department of Education Office for Civil Rights3 (OCR) or suggested by the National Center for Transgender Equality.4 Assigned sex or sex assigned at birth: the gender designation listed on one’s original birth certificate. Gender expression: How a person represents or expresses gender identity to others, often through behavior, clothing, hairstyles, voice, mannerisms, or physical characteristics. Gender identity: One’s internal sense of gender, which may be different from one’s assigned sex, and which is consistently and uniformly asserted, or for which there is other evidence that the gender identity is sincerely held as part of the person’s core identity. Gender nonconforming: A term for individuals whose gender expression is different from societal expectations related to gender. Gender stereotypes: Stereotypical notions of masculinity and femininity, including expectations of how boys or girls represent or communicate their gender to others, such as through their behavior, clothing, hairstyles, activities, voice, mannerisms, or physical characteristics. Gender transition: The process by which a transgender person begins to assert the sex that corresponds to the person’s gender identity instead of the person’s assigned sex at birth. Sexual orientation: A term describing a person’s attraction to members of the same sex and/or different sex, usually defined as lesbian, gay, bisexual, heterosexual, or asexual. Sexual orientation is a distinct concept from transgender status. In the context of nondiscrimination law, however, sexual orientation and transgender status are frequently analyzed together. Transgender: A term for people whose gender identity is different from their assigned sex at birth. Medical treatments or procedures are not a prerequisite for recognition as transgender. Transgender female: Someone who identifies as a female but was assigned the sex of male at birth. Also known as MTF or “male-to-female.” 3 See U.S. Dep’t of Educ., Office for Civil Rights, and the U.S. Dep’t of Justice, Civil Rights Division, Resolution Agreement between the Arcadia Unified School District and the U.S. Dep’t of Educ., OCR Case No. 09-12-1020, at 1-2 (July 24, 2013). 4 National Center for Transgender Equality, Transgender Terminology (Jan. 2014). © 2021. Texas Association of School Boards, Inc. All rights reserved. TASB Legal Services Page 3 Transgender male: Someone who identifies as male but was assigned the sex of female at birth. Also known as FTM or “female-to-male.” 3. Are school districts subject to OCR Title IX enforcement for claims of gender-based discrimination by transgender students? Yes. Title IX of the Education Amendments of 1972 (Title IX)5 is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities. OCR is the federal agency with the responsibility for enforcing Title IX. In June of 2021, OCR issued a formal notice of interpretation regarding the application of Title IX to discrimination on the basis of sexual orientation and gender identity. OCR stated that the guidance was necessary in light of the U.S. Supreme Court’s decision in Bostock v. Clayton County that Title VII protects gay and transgender individuals from workplace discrimination.6 In Bostock, the Court concluded that to discriminate on the basis of sexual orientation or gender identity “requires an employer to intentionally treat individual employees differently because of their sex.”7 Like Title VII, Title IX prohibits discrimination, including harassment, based on a person’s sex. Therefore, OCR stated that it “will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.” OCR clarified that, as with any other Title IX complaint, a complaint alleging discrimination based on sexual orientation or gender identity also must meet jurisdictional requirements as defined in Title IX and its implementing regulations.8 Even before Bostock was decided, OCR’s written policy guidance indicated that Title IX protects students from gender-based harassment, regardless of the student’s sexual orientation or gender identity: [G]ender-based harassment, including that predicated on sex- stereotyping, is covered by Title IX if it is sufficiently serious to deny or limit a student’s ability to participate in or benefit from the program. Thus, it can be discrimination on the basis of sex to harass a student on the basis of the victim’s failure to conform to stereotyped notions of masculinity and femininity.9 5 20 U.S.C. § 1681. 6 Bostock v. Clayton County, 140 S. Ct. 1731 (2020). 7 Bostock v. Clayton County, 140 S. Ct. 1731, 1742 (2020). 8 U.S. Dep’t of Educ., OCR, Federal Register Notice of Interpretation: Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County (June 16, 2021). 9 U.S. Dep’t of Educ., Office for Civil Rights, Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties at v (Jan. 19, 2001). © 2021. Texas Association of School Boards, Inc. All rights reserved. TASB Legal Services Page 4 In other words, Title IX protects all students, including transgender students, from harassment because of the student’s deviation from stereotypical gender norms. It does not matter whether or not a harasser is the same or opposite sex in relation to the targeted student’s assigned sex or gender identity. A school district may be liable under Title IX for employee or student harassment of transgender students when there is notice of harassment, followed by deliberate indifference and a failure to respond appropriately.10 If a complaint is filed alleging discrimination or harassment of a transgender student, school officials should work closely with the district’s attorney. 4. What does TASB policy say about transgender students? TASB offers a model policy that: (1) prohibits discrimination, harassment, dating violence, and retaliation against students; and (2) outlines remedial steps to report, investigate, and respond to concerns. Since 2005, a version of this policy has been at code FFH(LOCAL) in Texas school districts’ policy manuals. The TASB policy prohibits various forms of discrimination, including discrimination on the basis of sex, gender, or “any other basis prohibited by law.” The policy does not speak directly or solely about the rights of transgender students. As discussed above, the U.S. Supreme Court and Department of Education have found that discrimination on the basis of gender identity is a form of sex discrimination. 5. What additional guidance should we consider in addressing